[EL] Question re: Pildes, Hasen and Dorf on Edwards

[Michael Malbin]

Rick, Rick, and others:

Could the lawyers give some help to this non-lawyer?

It seems to me that Mike Dorf is relying in the language in FECA, which
defines a CONTRIBUTION AS "any gift, subscription, loan, advance, or deposit
of money or anything of value made by any person for the purpose of
influencing any election for Federal office."

As we all know, Buckley said that this same phrasing in FECA's next section
(defining EXPENDITURES) posed constitutional questions of vagueness. As I
read the famous footnote in Buckley, the concern about vagueness was pegged
particularly to the problem of chilling speech, and we all also know that
Buckley saw an expenditure as more direct form of speech than a
contribution.

So here is my question.  Rick Pildes seems to be arguing for the importance
of bright lines in criminal law, but the concern for bright lines clearly
does not apply with the same force to all criminal law (e.g. RICO).  So
either the courts have spoken on FECA's definition of contribution in some
case I ought to read but haven't, or Rick Pildes is assuming the expenditure
strictures should apply equally to the definition of contributions.

I believe there is a good case to be made here.  Clearly, it would be
strange to have the same phrase read differently within the same statute.

In addition, Pildes' argument has a fair amount of tax law scholarship going
for it.  After all, doesn't the same phrase ("for the purpose of influencing
the outcome of an election") also appear in the tax code, and don't most
scholars argue that the government has broader scope to use fuzzy
definitions ("facts and circumstances") in the tax code, because a fuzzy
definition -- even though it might effect speech -- only involves the
application of a tax break, as opposed to a criminal penalty?

Having said all of this on Pildes sides of the debate, it seems to me that
his claim that the law compels a bright line for what is a contribution is a
claim that requires more argument.  And if the law does not compel a bright
line, then you get to the dispute between Hasen and Dorf.

So comments, clarifications and expansions would be most welcome.

Thanks,

Michael Malbin

- - - - - - - - - - - - - - - - - - - - - - - - - - - - -
NOTE NEW ADDRESS AND PHONE EXT.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Michael J. Malbin
Executive Director
Campaign Finance Institute
1425 K Street NW (Suite 350)
Washington, D.C. 20005
PH:  202-969-8890. ext. 221
email:  mmalbin at CFInst.org
web: http://www.CFInst.org
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20110605/7967daf1/attachment.html>